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§ 46, 47—48 (Cincinnati, 1897), declared: “If a wrong Actiou was adopted, the Error was fatal to the whole proceed­ing, however clearly the Facts of the Controversy might have been brought before the proper Court. The plaintiff may have served his Adversary in due time, and may have given as full Information as to the Material Facts of the Case as could be given in any other Action; he may hare proceeded openly and fairly in all matters; there may have been no question as to the substantial Justice of his claim; but all this would not avail if his Action was not technically the proper one. Be must pay the costs and go out of Court. If he chose, he could begin again, but under like conditions. At his peril he must select the appropriate formula. It was not enough that he stood within the Temple of Justice, he must have entered through a particular door. Or, to change the ñgure, Chancery, the so-called

offiebu, justitiac, was like an armory. To It every man who would contend with another in the Courts comes to choose his weapon. The choice is large. All the weapons of Juridical Warfare are here. But every weapon has Its proper use, and can be put to no other. Moreover, only one wcapon can be chosen at a time; and once chosen It cannot be exchanged for a different weapon In the progress of the combat. It the ~ght Is to go on, It must be with



Cli. 2

(VI) The Power to Issue New Varieties of Original Writs.—The Chancellor was the King’s Secretary of State, and as such was long the most powerful Officer of the Gov­ernment, having his hand in most of the business of the Kingdom. This resulted from the fact that he was the Keeper of the Great

Seal which had to be impressed upon offi­cial Documents, and from the fact that any Administrative Orders of the King were usu­ally prepared under his personal supervision. And, in this connection, it should be remem­bered that the Conquest introduced into Eng­land the Norman principle that no individual or institution could act for the King or his Council unless authority to do so had been delegated to him. When, therefore, the Su­perior Common Law Courts were differenti­ated from the King’s Council, and the prob­lem arose of delegating to them the author­ity to act in each case, naturally the Chan­cellor and his Clerks, skilled in drafting Ex­ecutive Orders for the King, became respon­sible for the preparation of Writs authorizing the Royal Courts to try Specific Cases which fell within their Jurisdiction. At first the Writs were probably awarded according to Abstract Conceptions of Justice and the needs of the case, but later only according to Precedent. And these Original Writs almost from the beginning differed from each other according to the nature of the Plaintiff’s Complaint and the ground of the Defendant’s Liability. Unless the plaintiff’s Complaint
such a weapon as was first chosen, and according to Its special rules. A sword being selected, the rules of sword-play must be strictly followed. A erossbow may not be used as a mace. The issue of the combat must not be determined by mere brute force—not even by the brute force of indisputable facts arrayed before the Court. It is a contest of skill; success depends upon observing the formal rules of the combat,”

In this connection, Blackstone referred to the Chan­cery as “the oil icing fustitiae, the shop or mint of Justice, wherein all the King’s writs are framed.” Blackstone’s Commentaries on the Laws of $lngland, ]3ook III, c. XIV, Of the Pursuit of Remedies by Action, 756 (Chase’s Am. ed., New York, 1517).

fell within the scope of an Existing Form of Action, or unless the Chancellor saw fit to Issue a New Writ, the plaintiff could not maintain any Action at Law.
For approximately a hundred years from the institution of the Writ System to the early part of the Thirteenth Century, the King’s general power to formulate and issue New Writs through the Chancellor seems to have been unquestioned. In consequence the Law, as developed in the King’s Courts, be­tween 1154—1250, underwent a tremendous growth. The power to make New Writs was a power to create New Rights, and hence New Law. Thus the Chancery became the principal instrument by which Justice was gradually Centralized in the Crown. It be­came not only the “Shop of Justice,” but also the “Mother of Actions.” To the Chancery must apply all those seeking relief, to which the language of some known Writ was ap­plicable, or for some New Writ, framed on the analogy of those already in existence. Writs thus issued as a matter of routine were known as “writs of course.”

And as new social needs arose and as the political status of the country permit­ted, New Writs were hammered out on the anvil of Justice in the Shop of the Chancel­lor, New Rights and New Laws were created, which taken together, came to be known as the Common Law, as opposed to the Custom­ary Law enforced in the Local Courts, and which emerged during the latter part of the Thirteenth Century as a distinct System of National Law. The System, as thus devel­oped, was the joint product of the Common-Law Courts. But it should be remembered that these Courts were powerless to act with­out the authority of the King’s Writs, and that this New System was faced with a Struggle for Jurisdiction and Power stretch­ing over several hundred years against pow­erful rivals, chief among which were the Chancery and Ecclesiastical Courts, before it could achieve the position of first rank in the

Sec. 8



field of Anglo-American law. The credit for the creation of a Centralized Judicial System belongs therefore not only to the Common-Law Courts, but to the King and the Royal Officials, who made effective the Judgments of the Royal Judges, and who, by the King’s Writs, made Remedies available which were not ordinarily available under the Custom­ary Law of the land. The Original Writ Sys­tem was the fundamental basis of the New System of Centralized Justice.

Toward the Middle of the Thirteenth Cen­tury, the second great treatise in English law, Bracton’s De Legibus et Consuetudinibus Angliae, described by Pollock and Maitland as “the Crown and flower of English Medieval Jurisprudence,” 20 appeared. It served as a summary of the Writ System as it stood be­tween 1250 and 1258 and assured that the story of the development would be passed on to subsequent generations. Bracton took as his Model the Treatise of Mo of Bologna, the Great Civilian.21 Maitland and Montague, in speaking of Bracton’s debt to Azo, said:

“Thence he had obtained his idea of what a Law Book should be, and of how Law should be arranged and stated; thence also he bor­rowed Maxims and some Concrete Rules; with these he could fill up the Gaps in our English System,” 22 The core of this Trea­tise, however, was distinctly English and not Roman, and represented the Law as laid down by the Judgments of the King’s courts. If Bracton’s book be compared with that of Glanvilli, it will be seen that the Period be-

SO. 1 PollocIc and 3faitland, History of Engush Law, e. VI, The Age of Bracton, 185 (cambridge i595).
21. “fig fBraeton’sJ flame Wag not Bracton, but Bratton, or perhaps gretton. Entrics of his name In various rolls make this clear, But for the Law­yer be and his works are, and always wiN be, sita~ ply Bracton.” 2 Holdsworth; History of English Law, c. III, The Progress of the Common Law, 232 (3d otT. London 1923).

fl. A Sketch of English Legal History, c. 1, 44 (New York 1915).

tween 1154 and 1250, approximately a Cen­tury, had been one in which there had been a rapid development of both Procedural and Substantive Law, largely as a direct result of New Original Writs formulated in Chancery and approved by the “virile and progressive Judges who then manned the King’s Court.” ~
The Golden Age of the Forms of Action occurred during the last years of the Reign of Henry III [1216—12723, when the Old An­cient Real Common-Law Forms of Action were still in the running, while at the same time certain of the Modern Personal Actions had put in an appearance. It was during this Period, therefore, that the number of living Forms of Action reached its maximum. Shortly thereafter, the Real Actions revealed a tendency toward obsolescence, while the Common-Law power to create New Forms of Action was nearing its close. Under the influence of the Provisions of Oxford in 1258 only slight power of varying the Writs, An­cient or Modern, was left in the Chancellor; beyond this, relief lay by way of Parliament and Statute, and with the death of Edward I [1307], the first great Epoch of English Leg­islation ended. Thereafter, the greatest de­velopment of the Forms of Action was to be found in the development of the Common Law Actions of Case, Ejectment, Trover, Special and General Assumpsit—a distin­guished array—which ousted many of the

Older Actions and made heavy contribu­tions to both Contract, Property and Tort Law. From one point of view this may be regarded as evidence of the vigor of the Forms of Action and as evidence of their ca­pacity to forward the Development of Sub­stantive Law; but from another viewpoint, it may be regarded as the “decline and fall of the Formulary System, for Writs are be­ing made to do work for which they were

£3. Bowman, Randbook of Elementary Law, e. IV,

§ 54, 162 (St. Paul 1929).



Ch. 2

not originally intended, and that work they can only do by means of Fiction.” 24

The great expansion of the Royal Author­ity by use of the Writ System, as thus re­corded by Bracton, did not depend entirely upon the work of the Common-Law Courts. Thus, out of the Residuary Power which re­mained in the King’s Council after the Com­mon-Law Courts were differentiated there­from, the Court of Chancery was created. The Ecclesiastical Courts, which assumed a separate existence after the Ordinance of

LW1UI~ the Conqueror in 1072, governed matters of spiritual conduct, and certain as­pects of the Law of Succession while much litigation was cared for in the Local Courts and in the Private Baronial Courts. Fewer Courts, less Jurisdictions, would appear to have been the demand of the day. Neverthe­less, the Development of the Court of Chan­cery steadily proceeded. Why? 25

fl. 2 Pollock and Maitland, History of English Law, Bk. II, c. IX, Procedure, 562 (Cambridge 1895).

‘The typical pitfall which a Pleader might meet with in selecting a Form of Action is well illustrated by

- one of David Dudley Field’s reminiscences concern­ing the period immediately preceding the Enact­ment of the New York Code of Procedure of 1848, when he said: “I came near losing a ease on a Pol­icy of Insurance by declaring in Assurnpsft. When the Policy was produced at the Trial, the defend­flat’s Counsel insisted that it had a Zeal and so the Action should have been Covenant. There was, in­deed, a mark on the paper as if it had been stamped with a Seal or something like it, but the impression was faint, and the Judge, ?oolthtg at U without his glasses, said he could see no seal, and denied the Motion for Nonsuit.” Field, Law Reform in the United States and Its Influence Abroad, 25 Am.L. Rev. 515, 518 (1891).
t5. With reference to the Development of Equity as an incident of the reluctance of the Clerks in Chan­cery to grant New Writs, Blackstone, in speaking of Chapter 24 of the Statute of Westminster II, 13 Edw. I (1285), which authorized the Clerks to Is­sue New Writs In Cases similar to but not quite Identical with Cases in which Writs were previously Issued, stated: “Which provision (with a little ac­curacy in the Clerks of the Chancery, and a little liberality In the Judges, by extending rather than narrowing the remedial effects of the Writ) might bave effectually answered all the purposes of a

The answer seems to be connected with the Power of the Chancellor to issue Original Writs. As long as this power was unrestrict­ed and broad enough to encompass what we now describe as Equitable Relief, there was little reason for the development of the Eq­uity Courts. But this condition was not des­tined to continue.
Among the Third Class of Writs set forth by Bigelow, there were a number which nev­er became Writs of Course and which were of a character which in Modern Times would be regarded as Equitable. According to Big­elow,2° these were Writs of Protection, being the forerunners of our Modern Writs of In­junction, and of the protective process gen­erally as exercised by Chancery in its Early Stages of Development. The fact that these Writs never became dc oursu, accounts in no small measure, for the development of Ex­clusive Jurisdiction Over such Forms of Re­medial Relief by Chancery. If these Writs had achieved the status of Writs of Course, they would have fallen outside the purview of the Provisions of Oxford in 1258, and hence the Jurisdiction of the Royal courts would have remained unlimited and unim­paired as to this Type of Writ. The result might well have been to eliminate Equity or at least to prevent the vast expansion which thereafter took place. Or to put it in anoth­er way, the result of this development was to deprive the Common-Law courts of the

power to compel obedience to their Specific Orders, that is, of coercing obedience by or­ders in personam—a power, which we now know, as a result of research that has been done in the early cases, was exercised by the Superior Courts of the Norman Period. When the practice of issuing New Writs thus came to an end, the development of the Common

court of Equity; except that of obtaining a Discov­ery by the Oath of the defendant.” 3 Commentaries on the Laws of England, c. 4, Of the Public Courts of Common Law and Equity 51 (7th oil. Oxford 1775k.
~O. Bigelow, History of Procedure in England, e. IV, ‘The Writ Process, 192, 194 (Boston 1880).

Sec. S



Law was necessarily retarded at a time when it had not yet fully flowered, at a time when it had not fully emerged from its Primitive Stage, and its great qualities appeared as such only when viewed against the back­ground of the earlier and existing situations, and not in the light of later developments. This untimely restriction upon the Power to Issue New Writs under which the Common Law had gone far in the direction of furnish­ing England a Complete and Adequate Sys­tem of National Law, resulted in the Com­mon Law falling short of its full fruition. Several reasons for this unfortunate develop­ment may retrospectively be assigned; they are:

(A) Impairment of the Lards! Jurisdiction Over Their Private Courts—One of the Methods by which the Crown drew unto it­self control over the Administration of Jus­tice was by depriving the Barons of their Jurisdiction over disputes with their tenants. The theory was that the King intervened to assist a helpless tenant, or other litigant, as against a powerful landlord, but the net re­sult was to give the King’s Court Jurisdic­tion over the case. It is not surprising, therefore, to find that when the Barons re­volted against King John in 1215, they “ex­acted from him the first important conces­sions as the beginning of a long period of resistance to the absolute and centralized power of the English Kings.” 27 And they took advantage of the situation to make offi­cial their resentment of the encroachment upon their Baronial Jurisdiction by placing a provision in Magna Carta, Section 34 of which declared: “The Writ which is called Praecipe for the future shall not be made out to anyone of any tenement whereby a freeman may lose his Court.” Such provision clearly indicates the opposition of the Bar­ons to the constant and increasing infringe­ment upon their Jurisdiction, although it re­

mains doubtful whether it had any perma­nent effect in restricting the Chancery from issuing Writs, or the- King from continuing to impair the Jurisdiction of the Local as well as the Private Courts.

(B) The Provisions of Oxford (1258).— The issue involving the impairment of the Jurisdictions of the Barons was again raised in 1258 at Oxford. At this time and place the power of devising New Writs and there­by creating New Rights of Action—a power­ful and dangerous weapon in unscrupulou~ hands—received a severe check. The Bar­ons, headed by Simon de Montfort, forced up­on Henry III [1216—1272] the Provisions of Oxford, under which an Oath was imposed upon the Chancellor that he would issue no Writs “excepting Writs of Course without the Commandment of the King and of his Council who shall be present.” ~ This pro­vision, more effective than Section 34 of Magna Carta in 1215, placed in Parliament and not the King, the broad authority to cre­ate New Rights by granting New Remedies, with only a fraction of his former power left to the King. But, the effect of the Provi­sions was practically annulled some five years later by the decision of Louis IX, who was appointed as an arbitrator between Henry and the Barons, though the former power of the Chancellor does not seem to have been renewed. And, as so often hap­pened in English History, Parliament made but scant use of this New Power. In conse— quence, the Provisions of Oxford soon be­came inoperative under the changing politi­cal conditions, so that to all practical intents and purposes, the right to Legal Relief was
28. For a discussion of the Origin and Development of the Provisions of Oxford, see 2 Stubbs, Constitu­tional History of Enghand, Its Origin and Develop­ment, c XIV, 80—98 (Oxford 1874—78).
By “Writs of coume,” as opposed to Judicial Writs, ~‘were meant Writn far which Precedents might be found in the form book or Register of Writs kept in Chancery.” Milla; Common-Law Pleading, Pt. I, c. U, ~ 18 (Chicago 1935).

27. Kinnane, Anglo-American Law, c. XI, ~ 205, p. 222

(Indianapolis 1932).



Ch. 2

restricted to the Actions then in existence, the Clerks in Chancery being doubtful of their Authority to continue the Policy of Is­suing New Writs.

(C) The Statute of Westminster ii (1285).

—By this time, however, the Ancient Real Actions and certain of the later Common-Law Actions, such as Trespass, Debt, Detinue and Replevin, appear to have developed as a result of the action and interaction which took place over a long period of time between the Clerks in Chancery and the Common-Law Courts and Judges, without the aid of statutory en­actments.

While these Actions met the needs of their day fairly well, and through them, litigants were able to secure a rough and ready sort of Justice, they, nevertheless, fell far short of the Common Law ideal of providing a Rem­edy for every wrong. This was due in part to Defects in the Procedural Law and in part to Defects in the Substantive Law. On the Procedural Side, the Action of Detinue had been rendered practically useless because subject to Wager of Law—a handicap from which it never fully recovered, even after Wager of Law was abolished; and the Ac­tion of Debt was subject, in addition to Wa­ger of Law, to the requirement of extreme particularity in setting out the various items of the demand sued on. On the Substantive Law Side, there were also wide Gaps in the Remedial Law in both the Contract and Tort Field. In the Contract Field, Covenant was still the only form of Contract known, unless a situation out of which a Common-Law du­ty to pay a debt could be regarded as Con­tractual, and No Remedy had been developed br the Breach of a Parol Promise. In the Tort Field, while Trespass served as a fairly Adequate Remedy where the injury com­plained of was accompanied by force, it took no cognizance of those injuries which were (1) nnaccompanied by force, such as in the mere detention of goods where there had been no unlawful taking; (2) accompanied

by force, consequential and not immediate in its nature, such as an injury resulting from falling over a log, placed in the road at a time prior to the injury; (3) accompanied by force, and resulting in injury to property not then in possession of the owner, such as an injury to a reversionary interest in realty. These Defects, which we are now able to point out retrospectively, were not definitely recognized at that time.

At this point, however, It should be re­niernijered that the Writ of Trespass on the Case, which authorized the plaintiff to bring an action on the Particular Facts of his own case, in situations where none of the approv­ed Writs in the Register fit, had already been recognized.29 But before it had developed into a well-recognized and fully approved Writ, the power of devising New Writs and thereby creating New Rights of Action re­ceived a severe check by the Provisions of Oxford.
Nevertheless, the presence of the Defects outlined above, coupled with the commercial growth and development of the country, were, perhaps, an unconscious factor which led to the enactment in 1285 of the Statute of Westminster 1I,~° which authorized the Clerks in Chancery to issue New Writs in all cases similar to but not quite identical with cases in which Writs had been previous­ly issued, thus giving rise to the question
29. Kinlysltle v. Thornton, W.Bl. 1111, 1113, 96 Eng. Rep. 657 (1776).
30. The Statutc, 13 Ethv. I, c. 24, 1 Pickering’s Stat­utes at Large, 196, provided: “And whensoever from henceforth it shall fortune In the Chancery, that in one case a Writ Is found, and in like Case

[in consimili casul, falling under like Law, and re­quiring like Remedy, is found Done, the Clerks of the Chancery shall agree in making the Writ; or the Plaintiffs may adjourn It until the next Parlia­ment, and let the Cases be written In which they cannot agree, and let them refer themselves until

the next Parliament, by Consent of Men learned in

the Law, a Writ shall be made, lest it might hap­pen after that the Court should long time tail to minister Justice unto coMplainants.” (Translation of Canibridge Edition, 2762).

Sec. S
as to whether the Action of Trespass on the Case originated out of the Statute, or is to be more satisfactorily explained on some other theory. The issue thus presented has long been the subject of a learned controversy which has developed a considerable literature. The participants in this controversy, among whom are some of the most distinguished Anglo-American Le­gal Historians, Scholars and Teachers, have developed Three Schools of Thought. These include:
(1) Those who believe that the Action of Trespass on the Case developed as a result of the impact of the Statute of Westminster II,~’ taking its very name from the word casu as used in the famous and familiar phrase “consimili casu,” which appeared in Chapter 24 of the Statute. This group, known as the “Modernists,” is represented by Ames,32 Jenks ~‘ and Sutton.34
(2) Those who think that the Statute of Westminster It ~ had nothing to do with the Origin of the Action on the Case. This group, known as the “Revolutionists,” in­cludes Plucknett3° and Dix.31
21. 13 Edw. I, C. 24, 1 Pickering’s Statutes at Large

196. This Statute contained fifty chapters dealing with a great variety of problems, and is not to be regarded as a Statnte in the modern sense, but

rather as a series of Statutes enacted at one ses­sion of Parliament. Pifoot, History and Sources

of the Common Law, Development of Actions on the Case, c- 4, 60, n. 19 (London 1949).

32. Ames, a distinguished legal scholar and Dean of Harvard Law School, presented his views in Lec­tures on Legal History, Law and Morals, 435, 442 (Cambridge 1913).
23. For the view of Jcnh-s, see History of English Law, e. X, Contract and Tort, 136 (Boston 1912).

24. See Sutton, Personal Actions at Common Law, e.

11, 24, 25 (Toronto 1929).
35. 13 Edw. I, a 24 (1285), 1 Pickering’s Statutes at Large 196.
3t See articles by Plucknett, Case and the Statute of %Vestniinster II, 31 CoLL.Rev. 778 (1931); The Action on the Case and Westminster II, 52 L.Q.Rev. 220 (1936).

(3) Those who adopt the Middle View that while the Action on the Case existed prior to 1285, the date on which the Statute was enacted, its development into the Mod­em Action of Trespass on the Case would not have occurred without the influence and ac­tion on the part of the Clerks in Chancery as authorized by Parliament in Chapter 24 of the Statute of Westminster II ~ in 1285. This group, known as the “Traditionalists,” includes Holdsworth3° and Landon4°

(0) The Growing intervention of Ultan­cery.—Perhaps the real responsibility for the Arrested Development of the Common Law should be laid at the door of Chancery. Clearly the Inventive genius of the Clerks in Chancery had not come to an end as in that event there would have been no need f or Section 34 of Magna Carta in 1215 or the Provisions of Oxford in 1258. As a matter of policy the King’s Council evidently felt that there were certain Areas of Jurisdiction over which it desired to retain a closer su­pervision, and the argument seized upon for such a course of action was that there were certain defects in the Common-Law Reme­dial Scheme, as a result of which Meritorious Litigants were left Without Remedy at Law, hence the intervention of Chancery became necessary. But such was not always the case, as where the captain of a ship came in­to an English port, and being there but a few days, demanded payment of a debt due from an Englishman. Thus, the King, desiring to advance the mercantile interests of the coun­try, and in the face of the established fact that the plaintiff had an Adequate Remedy at Law in the Action of Debt, permitted the Chancellor to hail the defendant into Court,
38. 13 Edw. 1, c. 24 (1285), 1 Pickering’s Statutes at

Large 196.

30. See Comment by Holdsworth on Plucknett’s new• suggestion that the Statute of Westminster H (1285) was not the source of the Action of Trespass ~n the Case, 47 L.Q.Rev. 334 (1931).


37. See article by Miss Dix, The Origins of the Ac­tioa of Trespass on the Case, 46 Yale n.J. 1142 (1937).

40. Sec article by Landon, Case and WestmInster II,

52 L.Q.Rev. 68 (1956).



Oh. 2

examine him under Oath as to the debt, and if found to be owing, Order its payment on peril of being jailed for Contempt for failure to obey the Order.4’ Or the King may have intervened through the Chancellor, not be­cause there was no Common-Law Remedy, but because the State of Law and Order in the country was in such a condition that an Ordinary Litigant in a Contest with a Pow­erful Overlord, could not take advantage of his Common-Law Remedy.42 Thus, the Com­mon Law’s development was arrested when it was beginning to get a good start, and at a time when the social and economic needs of the country demanded expansion instead of restriction of the Common Law Remedial

9. Actions at Common Law, are divided into

Real, Mixed and Personal. Real Actions in­cluded those brought for the Specific Recovery of Lands, Tenements, or Hereditaments. Per­sonal Actions consisted of those brought for the Specific Recovery of Goods and Chattels, or for Damages for Breach of Contract, or for Damages for some Injury to the Person, or to one’s Relative Rights, or to Personal or Real Property. Mixed Actions partook, in some de­gree, of both Real and Personal Actions, where­in some Real Property was awarded, and also Personal damages for a Wrong sustained, and hence they were not properly reducible to either of them. they were brought both for the

Specific Recovery of Lands, Tenements, or Her­editaments, and for Damages for injury sus­tained in respect of such property.

ACCORDING to the Relief sought, Ac­tions have been Divided into:
(A) Real

(B) Mixed, and

(C) Personal
41. Barbour, The History of Contract in Early Eng­lish Equity, 4 Oxford Studies in social and Legal History, Pt. II, c. II,
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